Case: Ocean Wise Conservation Association v. Vancouver Board of Parks and Recreation, 2019 BCCA 58 (CanLII)

Keywords: Cetaceans; By-Law; Vancouver Charter, SBC 1953, c 55

Synopsis:

Approximately 6 months after two beluga whales die while in captivity at the Vancouver Aquarium, the Vancouver Board of Parks and Recreation (“VBPR”) passes a by-law amendment prohibiting cetaceans (e.g. whales, dolphins, and porpoises) being brought to, kept in, or presented in a show at a city park.

Vancouver Aquarium (which operates in Stanley Park) commences judicial review proceedings seeking to set aside the by-law amendment on a number of grounds, including that the by-law amendment is ultra vires – precluded by a licence agreement between the Vancouver Aquarium and the VBPR.

The Chambers Judge agrees that the licence agreement prevents application of the by-law to the Vancouver Aquarium; declares the by-law amendment ultra vires and void. The Court of Appeal disagrees; finding it was an error to conclude the VBPR could fetter its by-law making power in the licence agreement.

Importance:

This decision stands for the proposition that a municipality cannot fetter its legislative powers unless there is legislation expressly authorizing it to do so. For the Court of Appeal, since the Vancouver Charter, SBC 1953, c 55 does not contain express authorization permitting the VBPR to fetter its by-law making power, the licence agreement does not prevent the application of the by-law.

The Court of Appeal reached this conclusion after considering a number of authorities, including Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64 (CanLII) and Wells v. Newfoundland, 1999 CanLII 657 (SCC). At para. 48, the Court of Appeal set out the following applicable principles from the Pacific National:

  • the fettering of a municipality’s legislative powers is a very serious matter and a municipality cannot fetter those powers in a contract unless there is legislation expressly authorizing it to do so (see Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64 (CanLII) at paras. 55, 65);
  • a municipality cannot indirectly fetter its legislative powers by being liable to pay damages for breach of contract in a non-business/proprietary contract concerning the exercise of legislative powers (See Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64 (CanLII) at paras. 62-63, 74); and
  • a municipality will have to pay compensation for breach of business or proprietary contracts unless there is an express statutory provision denying compensation (See Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64 (CanLII) at paras. 60-61, 69).

Accordingly, for the Court of Appeal, the Chambers Judge erred by reversing the presumption that municipal bodies are not able to fetter their legislative powers – unless there is some express permission to do so. In this particular case, the Vancouver Charter would have had to specifically authorize the fettering. The Court of Appeal determined it did not. (See paras. 50-51).

The Court of Appeal went on to discuss how the Vancouver Charter could be adjusted to permit fettering municipal by-law making powers:

A sufficiently clear authorization in the present case could have been included in the Vancouver Charter in at least two ways. First, a phrase could have been included in the s. 491 by-law making provision along the lines of “subject to provisions contained in any lease, licence or other agreement under s. 490(1)”. Second, s. 490(1) could have included a phrase similar to the above-mentioned s. 702A(3) that the provisions of any lease, licence or other agreement were to apply “notwithstanding any by-law of the Board”. (See para. 66).

The Court of Appeal was aware of the pending appeal in Weyerhaeuser Company Limited v. Ontario (Attorney General), 2017 ONCA 1007 (CanLII), leave to appeal granted [2018] SCCA No. 67 and noted that principles derived from Pacific National “…may be revisited by the Supreme Court of Canada”. (See para. 49). This case is also noteworthy in that it provides an example of a Court of Appeal electing not to wait for the Supreme Court of Canada on a matter of legal principle. Rather, this Court chose to apply existing jurisprudence and weigh in on the potential controversy surrounding Pacific National notwithstanding clear knowledge that the Supreme Court of Canada will soon address the issue.

One awaits to what extent Canada’s highest court will rely on/cite as authority the 1883 Scottish case of Ayr Harbour Trustees referenced by the Court of Appeal herein at para. 57. Scotland gave the (legal) world not only Donohue v. Stevenson.

Counsel for the Appellant: Tim Dickson and Jeffrey Langlois (JFK Law Corporation, Vancouver)

Counsel for the Respondent: Randall Hordo, Q.C. and Caitlin Ohama-Darcus (Nathanson, Schachter & Thompson LLP, Vancouver)